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REAL ESTATE AGENCY

DIVISION 3 EMPLOYEE CRIMINAL RECORDS CHECK AND FITNESS DETERMINATION 863-003-0000 Purpose The purpose of these rules is to provide for the reasonable screening of subject individuals to determine if they have a history of criminal behavior such that they are not fit to work or volunteer in positions covered in OAR 863-003-0010(2). The fact that the Agency determines that a subject individual is fit does not guarantee the individual a position as an Agency employee, volunteer, contractor or vendor or that the individual will be hired by the Agency. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0005 Definitions As used in OAR chapter 863, division 3, unless the context of the rule requires otherwise, the following definitions apply: (1) Agency: The Real Estate Agency as defined in ORS 696.010. (2) Conviction: A final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere (no contest) or any determination of guilt entered by a court of law against a subject individual in a criminal case, unless that judgment has been reversed or set aside by a subsequent court decision. (3) Fitness determination: A determination made by the Agency, pursuant to the process established under OAR 863-003-0050, that a subject individual is fit or not fit to be an Agency employee, volunteer, contractor or vendor in a position covered by 863-003-0010(2). (4) Criminal offender information: Records and related data concerning physical description and vital statistics, fingerprints received and compiled by the Oregon Department of State Police to identify criminal offenders and alleged offenders, records of arrests and the nature and disposition of criminal charges, including sentencing, confinement, parole and release records. (5) Criminal records check: One or more of the following three processes undertaken by the Agency to check the criminal history of a subject individual: (a) A name-based check of criminal offender information conducted through the Law Enforcement Data System (LEDS) maintained by the Oregon Department of State Police, in accordance with the rules adopted and procedures established by the Oregon Department of State Police; (b) A check of Oregon criminal offender information, through fingerprint identification and other means, conducted by the Oregon Department of State Police at the Agency's request (Oregon Criminal Records Check); or (c) A nationwide check of federal criminal offender information, through fingerprint identification and other means, conducted by the Oregon Department of State Police through the Federal Bureau of Investigation or otherwise at the Agency's request (Nationwide Criminal Records Check). (6) Criminal records request form: An Agency-approved form, completed by a subject individual, requesting the Agency to conduct a criminal records check. (7) False statement: In association with an activity governed by these rules, a subject individual either: (a) Provided the Agency with false information about the subject individual’s criminal history, including but not limited to false information about the individual’s identity or conviction record; or (b) Failed to provide the Agency information material to determining the individual’s criminal history. (8) Subject Individual: An individual identified in OAR 863-003-0010 as someone from whom the Agency may require a criminal records check. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0010 Subject Individual The Agency may require a subject individual to complete a criminal records check pursuant to these rules because the person: (1)(a) Is employed by or applying for employment with the Agency; or (b) Provides services or seeks to provide services to the Agency as a volunteer, contractor, or vendor; and (2) Is, or will be, working or providing services in a position: (a) In which the subject individual is providing information technology services and has control over, or access to, information technology systems that would allow the person to harm the information technology systems or the information contained in the systems; (b) In which the subject individual has access to information that state or federal laws, rules or regulations prohibit disclosing or define as confidential; (c) That has payroll functions; (d) In which the subject individual has responsibility for receiving, receipting or depositing money or negotiable instruments; (e) In which the subject individual has responsibility for billing, collections or other financial transactions; (f) In which the subject individual has responsibility for purchasing or selling property or has access to property held in trust or to private property in the temporary custody of the state; (g) That has mailroom duties as the primary duty or job function; (h) That has personnel or human resources functions as one of the position's primary responsibilities; (i) In which the subject individual has access to Social Security numbers, dates of birth or criminal background information of employees or members of the public; (j) In which the individual has access to tax or financial information about individuals or business entities. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0020 Criminal Records Check Process (1) Disclosure of Information by Subject Individual. (a) Preliminary to a criminal records check, a subject individual must complete and sign the Agency criminal records request and a fingerprint card. Both forms ask for identifying information (e.g., name, birth date, social security number, physical characteristics, driver's license or identification card number and current address of the subject individual). The Agency criminal records request also requires information about the subject individual’s prior residences in other states and any other identifying information deemed necessary by the Agency. (b) A subject individual must complete and submit to the Agency the Criminal Records Request form and, if requested, a fingerprint card within three business days of receiving the forms. The Agency may extend the deadline for good cause. (c) The Agency may require additional information from the subject individual as necessary to complete the criminal records check and fitness determination, such as, but not limited to, proof of identity; or additional criminal, judicial, or other background information. (d) The Agency shall not request a fingerprint card from a subject individual under the age of 18 years unless the subject individual is emancipated pursuant to ORS 419B.550 et seq, or unless the Agency also requests the written consent of a parent or guardian. In such case, such parent or guardian and youth must be informed that they are not required to consent. Notwithstanding, failure to consent may be construed as a refusal to consent under OAR 863-003-0050(3). (2) When a Criminal Records Check is Required. The Agency may conduct, or request the Oregon State Police to conduct, a criminal records check when: (a) An individual meets the definition of a subject individual; or (b) Required by federal law or regulation, by state or administrative rule, or by contract or written agreement with the Agency. (3) Which Criminal Records Check is Conducted. When the Agency determines under section (2) of this rule that a criminal records check is needed, the Agency may request or conduct a LEDS Criminal Records Check, an Oregon Criminal Records Check, a Nationwide Criminal Records Check, or any combination thereof. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0040 Hiring or Appointing on a Preliminary Basis (1) If the Agency elects to conduct a criminal records check pursuant to these rules, the Agency, in its sole discretion, may hire or appoint the subject individual on a preliminary basis pending completion of a criminal records check when: (a) The subject individual has provided all information (including a fingerprint card, if requested) as required by the Agency pursuant to OAR 863-003-0020; and (b) The Agency, in its sole discretion, determines that preliminary hiring is in the Agency’s best interests. (2) A subject individual hired or appointed on a preliminary basis under this rule may participate in training, orientation, and work activities as assigned by the Agency. (3) Nothing in this rule shall be construed as requiring the Agency to hire on a preliminary basis. (4) A subject individual hired on a preliminary basis is deemed to be on trial service. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0050 Final Fitness Determination (1) If the Agency elects to conduct a criminal records check, the Agency shall make a fitness determination about a subject individual based on information provided by the subject individual under OAR 863-003-0020, the criminal records check(s) conducted, and any false statements made by the subject individual. (2) In making a fitness determination about a subject individual, the Agency will also consider the factors in subsections (a) through (f) below in relation to information provided by the subject individual under OAR 863-003-0020(1), any LEDS report or criminal offender information obtained through a criminal records check, and other information known by the Agency. To assist in considering these factors, the Agency may obtain any other information deemed relevant from the subject individual or any other source, including law enforcement and criminal justice agencies or courts within or outside of Oregon. To acquire other criminal offender information from the subject individual, the Agency may request to meet with the subject individual, and may request to receive written materials or authorization to obtain other relevant information, from him or her. The subject individual shall meet with the Agency if requested and provide additional information or authorization within a reasonable period of time, as established by the Agency. The Agency will use all collected information in considering: (a) Whether the subject individual has been convicted, found guilty except for insanity (or a comparable disposition), or has a pending indictment for a crime listed in OAR 863-003-0060; (b) The nature of any crime identified under section (2)(a) of this rule; (c) The facts that support the conviction, finding of guilty except for insanity, or pending indictment; (d) Any facts that indicate the subject individual made a false statement; (e) The relevance, if any, of a crime identified under section (2)(a) of this rule or of a false statement made by the subject individual to the specific requirements of the subject individual's present or proposed position, services or employment; and (f) The following intervening circumstances, to the extent that they are relevant to the responsibilities and circumstances of the services or employment for which the fitness determination is being made: (A) The passage of time since the commission or alleged commission of a crime identified under section (2)(a) of this rule; (B) The age of the subject individual at the time of the commission or alleged commission of a crime identified under section (2)(a) of this rule; (C) The likelihood of a repetition of offenses or of the commission of another crime; (D) The subsequent commission of another crime listed in OAR 863-003-0060; (E) Whether a conviction identified under section (2)(a) of this rule has been set aside, and the legal effect of setting aside the conviction; (F) A recommendation of an employer; (G) The disposition of a pending indictment identified under section (2)(a) of this rule; (H) Whether the subject individual has been arrested for or charged with a crime listed under OAR 863-003-0060; (I) Whether the subject individual is being investigated, or has an outstanding warrant, for a crime listed under OAR 863-003-0060; (J) Whether the subject individual is currently on probation, parole or another form of post-prison supervision for a crime listed under OAR 863-003-0060; (K) Whether the subject individual has a deferred sentence or conditional discharge in connection with a crime listed under OAR 863-003-0060; (L) Whether the subject individual has been adjudicated in a juvenile court and found to be within the court's jurisdiction for an offense that would have constituted a crime listed in OAR 863-003-0060 if committed by an adult; (M) Periods of incarceration of the subject individual; (N) The education and work history (paid or volunteer) of the subject individual since the commission or alleged commission of a crime. (3) Refusal to Consent. If a subject individual refuses to submit or consent to a criminal records check including fingerprint identification, the Agency will deny the employment of the subject individual or deny any applicable position or authority to provide services. A person may not appeal any determination made based on a refusal to consent. (4) If a subject individual is determined to be not fit, the subject individual may not be employed by or provide services as a volunteer, contractor or vendor to the Agency in a position described in OAR 863-003-0010(2). (5) Final Order. A completed final fitness determination is a final order of the Agency unless the affected subject individual appeals the determination by requesting a contested case hearing as provided by 863-003-0090(2) or an alternative appeals process as provided by 863-003-0090(6). Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0060 Potentially Disqualifying Crimes (1) Crimes Relevant to A Fitness Determination: (a) All felonies; (b) All misdemeanors; (c) Any United States Military crime or international crime; (2) Evaluation of Crimes. The Agency shall evaluate a crime on the basis of the law of the jurisdiction in which the crime or offense occurred, as those laws are in effect at the time of the fitness determination. (3) Expunged Juvenile Record. Under no circumstances shall a subject individual be determined to be not fit under these rules on the basis of the existence or contents of a juvenile record that has been expunged pursuant to ORS 419A.260 and 419A.262. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0070 Incomplete Fitness Determination (1) The Agency will close a preliminary or final fitness determination as incomplete when: (a) Circumstances change so that a person no longer meets the definition of a "subject individual" under OAR 863-003-0010. (b) The subject individual does not submit materials or information within the time required under OAR 863-003-0020(1); (c) The Agency cannot locate or contact the subject individual; (d) The subject individual fails or refuses to cooperate with the Agency's attempts to acquire other criminal records information under OAR 863-003-0050(2); or (e) The Agency determines that the subject individual is not eligible or not qualified for the position (of employee, contractor, vendor or volunteer) for a reason unrelated to the fitness determination process. (f) The position is no longer open. (2) A subject individual does not have a right to a contested case hearing under OAR 863-003-0090(2) or a right to an alternative appeals process as provided by OAR 863-003-0090(6) to challenge the closing of a fitness determination as incomplete. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0080 Notice to Subject Individual of Fitness Determination The Agency shall inform the subject individual who has been determined not to be fit on the basis of a criminal records check, via personal service, or registered or certified mail to the most current address provided by the subject individual, of such disqualification. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0090 Appealing a Fitness Determination (1) Purpose. Sections (2) to (5) of this rule set forth the contested case hearing process a subject individual must use to appeal a completed final fitness determination made under OAR 863-003-0050 that the individual is not fit to hold a position with, or provide services to the Agency as an employee, volunteer, contractor, or vendor. Section (6) of this rule identifies an alternative appeal process available only to current Agency employees. (2) Appeal process. (a) To request a contested case hearing, the subject individual or the subject individual's legal representative must submit a written request for a contested case hearing to the address specified in the notice provided under OAR 863-003-0080. To be timely, the request must be received by the Agency at the specified address within 14 calendar days of the date stated on the notice. The Agency shall address a request received after expiration of the deadline as provided under OAR 137-003-0528. (b) When a timely request is received by the Agency under subsection (a), a contested case hearing shall be conducted by an administrative law judge assigned by the Office of Administrative Hearings, pursuant to the Attorney General's Uniform and Model Rules, “Procedural Rules, Office of Administrative Hearings” OAR 137-003-0501 to 137-003-0700, as supplemented by the provisions of this rule. (3) Discovery. The Agency or the administrative law judge may protect information made confidential by ORS 181.534(15) or other applicable law as provided under OAR 137-003-0570(7) or (8). (4) No Public Attendance. Contested case hearings on fitness determinations are closed to non-participants. (5) Proposed and Final Order: (a) Proposed Order. After a hearing, the administrative law judge will issue a proposed order. (b) Exceptions. Exceptions, if any, shall be filed within 14 calendar days after service of the proposed order. The proposed order shall provide an address to which exceptions must be sent. (c) Default. A completed final fitness determination made under OAR 863-003-0050 becomes final: (A) unless the subject individual makes a timely request for a hearing; or (B) when a party withdraws a hearing request, notifies the Agency or the ALJ that the party will not appear, or fails to appear at the hearing. (6) Alternative Process. A subject individual currently employed by the Agency may choose to appeal a fitness determination either under the process made available by this rule or through a process made available by applicable personnel rules, policies and collective bargaining provisions. A subject individual's decision to appeal a fitness determination through applicable personnel rules, policies, and collective bargaining provisions is an election of remedies as to the rights of the individual with respect to the fitness determination and is a waiver of the contested case process made available by this rule. (7) Remedy. The only remedy that may be awarded is a determination that the subject individual is fit or not fit. Under no circumstances shall the Agency be required to place a subject individual in any position, nor shall the Agency be required to accept services or enter into a contractual agreement with a subject individual. (8) Challenging Criminal Offender Information. A subject individual may not use the appeals process established by this rule to challenge the accuracy or completeness of information provided by the Oregon Department of State Police, the Federal Bureau of Investigation, or agencies reporting information to the Oregon Department of State Police or the Federal Bureau of Investigation. (a) To challenge information identified in this section of the rule, a subject individual may use any process made available by the agency that provided the information. (b) If the subject individual successfully challenges the accuracy or completeness of information provided by the Oregon Department of State Police, the Federal Bureau of Investigation, or an agency reporting information to the Oregon Department of State Police or the Federal Bureau of Investigation, the subject individual may request that the Agency conduct a new criminal records check and re-evaluate the original fitness determination made under OAR 863-003-0050 by submitting a new Agency criminal records request. This provision only applies if the position for which the original criminal history check was conducted is vacant and available. (9) Appealing a fitness determination under section (2) or section (6) of this rule, challenging criminal offender information with the agency that provided the information, or requesting a new criminal records check and re-evaluation of the original fitness determination under section (8)(b) of this rule, will not delay or postpone the Agency’s hiring process or employment decisions. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0100 Recordkeeping and Confidentiality Any information obtained in the criminal records check is confidential. The Agency must restrict the dissemination of information obtained in the criminal records check. Only those persons, as identified by the Agency, with a demonstrated and legitimate need to know the information, may have access to criminal records check records. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14863-003-0110 Fees (1) The Agency may charge a fee for acquiring criminal offender information for use in making a fitness determination that will not exceed the fee charged the Agency by the Oregon Department of State Police and the Federal Bureau of Investigation to obtain such information. (2) The Agency may charge the fee to the subject individual on whom criminal offender information is sought or, if the subject individual is an employee of an Agency contractor or vendor and is undergoing a fitness determination in that capacity, the Agency may charge the fee to the subject individual's employer. Stat. Auth.: ORS 181.534 & 696.385 Stats. Implemented: ORS 181.534 & 696.790 Hist.: REA 9-2014, f. 4-14-14, cert. ef. 4-28-14

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